{"id":25995,"date":"2021-07-10T02:21:00","date_gmt":"2021-07-10T02:21:00","guid":{"rendered":"https:\/\/www.lifeandnews.com\/articles\/?p=25995"},"modified":"2021-07-11T09:54:41","modified_gmt":"2021-07-11T09:54:41","slug":"trump-cant-beat-facebook-twitter-and-youtube-in-court-but-the-fight-might-be-worth-more-than-a-win","status":"publish","type":"post","link":"https:\/\/www.lifeandnews.com\/articles\/trump-cant-beat-facebook-twitter-and-youtube-in-court-but-the-fight-might-be-worth-more-than-a-win\/","title":{"rendered":"Trump can\u2019t beat Facebook, Twitter and YouTube in court \u2013 but the fight might be worth more than a win"},"content":{"rendered":"\n

Frank LoMonte<\/a>, University of Florida<\/a><\/em><\/p>\n\n\n\n

From condo salesman to reality TV host to leader of the free world, Donald Trump<\/a> has occupied several lifetimes\u2019 worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul\u2019s latest metamorphosis \u2013 into a consumer-rights plaintiff seeking to regulate big business<\/a> \u2013 is a peculiar one.<\/p>\n\n\n\n

With a volley of lawsuits<\/a> against the operators of Facebook<\/a>, Twitter<\/a> and YouTube<\/a>, former President Trump is asking the courts to do what tycoon Trump once would have denounced<\/a>: tell some of America\u2019s most powerful corporations that they have no choice who they do business with.<\/p>\n\n\n\n

As a First Amendment and media law scholar<\/a>, I believe the former president knows he can\u2019t win in court. Here\u2019s why \u2013 and why even his most ardent supporters don\u2019t really want him to.<\/p>\n\n\n\n

\"Screenshot<\/a>
When Twitter banned Trump, it made headlines. Screenshot, Voice of America website<\/a><\/figcaption><\/figure>\n\n\n\n

Content moderation rules<\/h2>\n\n\n\n

After the Jan. 6 attack on the U.S. Capitol<\/a> by rioters bent on preventing Congress from certifying President Biden\u2019s electoral win, all of the major social platforms \u2013 Facebook, Twitter and YouTube \u2013 pulled the plug on Trump\u2019s accounts<\/a>. The companies cited internal rules about misuse of their platforms to spread misinformation and incite violence.<\/p>\n\n\n\n

Trump\u2019s lawsuit barrage seeks not just to overturn his own bans but to invalidate a 1996 federal statute, Section 230 of the Communications Decency Act<\/a>, that entitles website operators to choose who and what appears on their pages without fear of liability. His attorneys are arguing \u2013 creatively, but I believe without much legal foundation \u2013 that the Communications Decency Act is unconstitutional in that Congress has given platforms too much speech-policing power.<\/p>\n\n\n\n

Section 230 has been called the law that \u201ccreated the internet<\/a>,\u201d as it enables anyone who operates or uses a website \u2013 not, as Trump claims, only social media behemoths \u2013 to disavow responsibility for what outsiders come onto the site and say.<\/p>\n\n\n\n

The law does enable YouTube to deactivate videos, or entire accounts, without assuming \u201cownership\u201d of anything libelous that remains viewable. But it also allows the proprietor of a small-town news site to entertain reader comments without being considered the \u201cpublisher\u201d of \u2013 and thus liable for \u2013 every scurrilous statement that ends up in the comments section.<\/p>\n\n\n\n

Social networks have enforced their \u201ccontent moderation\u201d rules spottily and without much transparency. That\u2019s a bad business practice, and it\u2019s arguably unfair. But the Constitution doesn\u2019t offer a remedy for all of life\u2019s adversities. It certainly doesn\u2019t offer one for Donald Trump here.<\/p>\n\n\n\n

Social media isn\u2019t government<\/h2>\n\n\n\n

Court after court has rejected the argument that because social networks are widely considered \u2013 in the Supreme Court\u2019s words<\/a> \u2013 \u201cthe modern public square,\u201d speakers are entitled to demand access to their platforms just as they are entitled to use a physical public square. That\u2019s not how the First Amendment works.<\/p>\n\n\n\n

The protections of the First Amendment are triggered when a public agency exercises governmental power to restrict people\u2019s speech \u2013 what is known as \u201cstate action.\u201d<\/a> On rare occasions, private organizations can be considered \u201cgovernmental\u201d \u2013 for instance, when a private hospital or university is given police power to make arrests on its premises.<\/p>\n\n\n\n

But operating a video-sharing platform is not a \u201cgovernmental\u201d function \u2013 and judges have said so, unanimously<\/a>.<\/p>\n\n\n\n

Conservatives, including Trump, cannot possibly want private businesses to be governed by the same constitutional standards that apply to cities and counties. If courts started applying the Bill of Rights to Walmart or McDonald\u2019s just because they are large and powerful entities that control a lot of property, those establishments would be forced to welcome even the most disagreeable speakers \u2013 let\u2019s say, a diner wearing a \u201cF*** Trump\u201d T-shirt \u2013 no matter how many offended customers complain.<\/p>\n\n\n\n

\"Twitter<\/a>
Twitter CEO Jack Dorsey and other Big Tech leaders testified virtually at a congressional hearing in October 2020 regarding Section 230 of the Communications Decency Act, which guarantees that tech companies cannot be sued for content on their platforms. Michael Reynolds-Pool\/Getty Images<\/a><\/figcaption><\/figure>\n\n\n\n

Upending conservative gospel<\/h2>\n\n\n\n

For decades, conservatives have fought<\/a> \u2013 quite hard and quite successfully in court<\/a> \u2013 to establish that corporations have First Amendment rights equivalent to those of living, breathing people. That includes the corporations operating social media channels.<\/p>\n\n\n\n

In a recent essay about democracy in the social media age<\/a>, I explain how the Communications Decency Act has evolved into the near-impenetrable liability shield that it is today.<\/p>\n\n\n\n

In the essay, I describe how the proprietor of a hotel or tavern isn\u2019t liable for harm caused by customers visiting the establishment \u2013 unless the customer has a known history of dangerousness that the proprietor chooses to ignore. That might offer a split-the-difference path for addressing the worst trolling behavior on social media by repeat bad actors \u2013 but, to be clear, it\u2019s not the law today.<\/p>\n\n\n\n

Today, the law unmistakably entitles the Twitters of the world to do just about anything with their customers\u2019 posts: take them down, leave them up, add warnings or modifiers. If users are aggrieved by the way they\u2019re treated, they can do exactly what they\u2019d do in the offline world: Take their business somewhere else.<\/p>\n\n\n\n

[Understand key political developments, each week.<\/em> Subscribe to The Conversation\u2019s politics newsletter<\/a>.]<\/p>\n\n\n\n

Old news<\/h2>\n\n\n\n

The Supreme Court already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today. In the case, Miami Herald Publishing Co. v. Tornillo, the justices rejected<\/a> a state legislative candidate\u2019s insistence that he was entitled to space in the local newspaper to respond to criticism in two editorial columns.<\/p>\n\n\n\n

While the justices acknowledged that a big-city newspaper might have a near-monopoly over information about local elections \u2013 sound familiar? \u2013 they agreed that the First Amendment would not tolerate commandeering the presses of a private publisher in the interest of government-enforced \u201cfairness.\u201d<\/p>\n\n\n\n

A federal judge in Florida, relying on the Tornillo case, just ordered<\/a> the state not to enforce a newly enacted \u201canti-deplatforming\u201d law enabling any Florida political candidate whose social media posts are hidden, modified or deactivated to sue the platform. The judge concluded that the law violates the First Amendment rights of the platforms by (for example) compelling platforms to let candidates post anything they want, without moderation. \u201cBalancing the exchange of ideas among private speakers,\u201d the judge wrote, \u201cis not a legitimate governmental interest.\u201d<\/p>\n\n\n\n

\"The<\/a>
\u2018The Supreme Court,\u2019 writes the author, \u2018already decisively dealt with this issue a half-century ago, when newspapers and television stations held power over political discourse comparable to that of Facebook and Twitter today.\u2019 AP Photo\/Patrick Semansky<\/a><\/figcaption><\/figure>\n\n\n\n

No one involved with this case could be serious about winning in federal court. But that is not the \u201ccourt\u201d to which the former president is playing.<\/p>\n\n\n\n

Tilting at Silicon Valley appeals directly to Trump\u2019s populist followers, many of whom probably suspect<\/a> that their own clever tweets failed to go viral only because the system is rigged against them.<\/p>\n\n\n\n

But even if, as experts suggest<\/a>, Trump\u2019s case is destined to fail, dismissal would be yet another headline and fundraising hook, along the lines of, \u201cYou knew those socialist judges were in Hillary\u2019s pocket.\u201d And even if Trump were ordered to pay Twitter CEO Jack Dorsey and Facebook CEO Mark Zuckerberg\u2019s attorney fees, they\u2019d have to queue up behind decades\u2019 worth<\/a> of unpaid Trump creditors.<\/p>\n\n\n\n

As Trump would tweet, if given the chance: \u201cSo much winning!\u201d<\/p>\n\n\n\n

Frank LoMonte<\/a>, Director of the Brechner Center for Freedom of Information, University of Florida<\/a><\/em><\/p>\n\n\n\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Frank LoMonte, University of Florida From condo salesman to reality TV host to leader of the free world, Donald Trump has occupied several lifetimes\u2019 worth of identities over a remarkable career of reinventions. Even so, the billionaire mogul\u2019s latest metamorphosis \u2013 into a consumer-rights plaintiff seeking to regulate big business \u2013 is a peculiar one. […]<\/p>\n","protected":false},"author":44,"featured_media":25996,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[8449,1741,479,483,2254,1614,10161,4274,2024,9507,10162,486,1666,1791],"_links":{"self":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/25995"}],"collection":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/comments?post=25995"}],"version-history":[{"count":2,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/25995\/revisions"}],"predecessor-version":[{"id":26035,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/posts\/25995\/revisions\/26035"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media\/25996"}],"wp:attachment":[{"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/media?parent=25995"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/categories?post=25995"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lifeandnews.com\/articles\/wp-json\/wp\/v2\/tags?post=25995"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}